On June 12, 1963, petitioner Eddie J. Hicks was convicted in the Court of General Sessions, Criminal Division of the District of Columbia of the crime of vagrancy.

The particular subsection of the District of Columbia vagrancy statute on which he was convicted provides that a vagrant is one who is leading an immoral or profligate life.

At his trial and at every step in the appellant procedure, petitioners contented that the words leading an immoral or profligate life are unconstitutionally vague.

He made this argument first in the District of Columbia Court of Appeals, the local Court of Appeals and this court in a decision affirmed the judgment and rejected the constitutional argument.

As required by the District of Columbia code petitioner next applied to the United States Court of Appeals for the District of Columbia Circuit seeking a petition for allowance of an appeal to that court.

The three-judge division of that court appointed to sit on the petition, denied the petition by a vote of two-to-one.

Petitioner next petitioned the court en banc for petition for allowance of an appeal.

The entire court, voting three-to-six, denied the petition for reconsideration on en banc.

Subsequently, petitioner filed a petition for writ of certiorari in this Court and it was granted in February of this year.

There's only one substantial question presented in this proceeding as there's been only one substantial question presented anywhere in it, whether subsection 3 of the vagrancy statute is unconstitutionally vague and indifferent -- indefinite.

On --

Justice John M. Harlan: You are going to argue the point of jurisdiction?

Mr. Charles W. Wolfram: Yes I am, Mr. Justice Harlan.

I don't think that the government's memorandum suggesting mootness requires any argument.

On this petition for certiorari, three questions have been raised which go the jurisdiction of the Court or the discretion of the Court to hear the case.

The first one involves the timeliness of the petition for certiorari.

The District of Columbia has attempted to show that since the petition was not filed within the 30 days called for by Rule 22, paragraph 2 of the Rule of this Court, this Court does not possess the power to hear the case.

This is clearly wrong.

Haplin versus the United States cited in our reply brief quite clearly demonstrates that the rules of this Court can be waived by the Court in an appropriate case.

There is no jurisdictional statute involved.

No Acts of Congress provides the time within which a criminal case from the United States Court of Appeals is to be brought to the Supreme Court.

Rule 22, paragraph 2 is the only provision setting out the time limitation.

I took, by the grant of certiorari, that this question had been considered by the Court and that the Court have decided in its discretion to waive the requirements of Rule 22 because of the unusual circumstances presented in the petition and in the record.

Justice Potter Stewart: The matter to which, the matter put an issue on the petition approved?

Mr. Charles W. Wolfram: Yes it was, (Voice Overlap) -- the opposition for -- to the petition for certiorari did bring this matter to the attention of the Court.

Justice Potter Stewart: Was there a response to the petition?

Mr. Charles W. Wolfram: No, there wasn't.

Justice Potter Stewart: So it wasn't put an issue, was it?

Mr. Charles W. Wolfram: It was put an issue to the extent that the respondent argued the case and briefed it fully in their opposition to the petition for certiorari.

Justice Potter Stewart: Well, I misunderstood you.

I thought you'd said there wasn't an opposition.

Mr. Charles W. Wolfram: Yes, there was an opposition.

There was a reply to the opposition.

Justice Potter Stewart: I see.

Mr. Charles W. Wolfram: Yes sir.

The second point presented by respondent involves the statutory foundation for the exercise of this Court's power to issue a writ of certiorari.

If one reads Section 1254, paragraph 1 of the judicial code, one would quite clearly think that this case is properly here.

It provides that the Supreme Court may review by writ of certiorari, cases in the Court of Appeals or cases in the Court of Appeals for the District of Columbia Circuit.

I would have thought so myself.

However, in 1927, this Court in the memorandum decision in Ferguson versus the District of Columbia decided that the words in the Court of Appeals means that the court below have accepted the appeal where it is presented to it in a discretionary nature.

In Ferguson, which was much like this case, the petitioner reply to the United States would be equivalent then of the United States Court of Appeals for the District of Columbia Circuit and was denied discretionary review.

The petition for writ of certiorari was founded under the predecessor section, the Section 1254 and the Court, although not presented with any opposition by the District of Columbia and although the point wasn't argued in the petition for certiorari, decided that Section 1254 (1) did not apply to this case.

A subsequent case House v. Mayo has explained that the Court in Ferguson was of the belief that the words in the Court of Appeals mean that that court have considered the case on the merits.

I think the case is wrong, but I don't' think it need be overruled for the purposes of this case in any event.

Sections 1651 (a), the all writ section, as the Court well-knows gives this Court the power to issue all writs necessary in aid of its jurisdiction.

If the Court of Appeals had properly granted the petition for allowance of appeal when it had the opportunity, then Section 1254 would apply.

It did not grant the petition for allowance from the appeal, that refusal to grant the petition was erroneous.

The question is, whether that erroneous denial of the petition for allowance of appeal effectively precludes this Court from hearing the case on the merits, clearly not.

There are several cases in the official reports involving just such a situation.

Justice John M. Harlan: [Inaudible] was erroneous?

Mr. Charles W. Wolfram: The refusal was erroneous for several reasons.

The largest reason in my mind is because an obvious, an important and substantial question of constitutional law was presented to the Court.

I think in that sort of a situation, the Court should exercise its discretion only under the most extreme circumstances --

Justice William J. Brennan: Is it obliged to?

What obliged the District of Columbia Court of Appeals?

Mr. Charles W. Wolfram: They are obliged because of the very nature of the case.

We concede that there is a measure of jurisdiction in the --

Justice William J. Brennan: A discretion?

Mr. Charles W. Wolfram: Excuse me, discretion -- in the United States Court of Appeals to decide what cases they will review when they are presented on the petition for allowance of appeal.

We contend however that there are certain cases which are so important where the issue is so clear and where the outcome is so obvious that the refusal of the petition for allowance of appeal is erroneous and can be reviewed by this Court under the All Writ section.

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: I must have been spoke in my description of the Ferguson case.

Ferguson was under Section 1254 (1), the predecessor 1254 (1).

We are here under 1651 (a), the All Writ section.

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: The very purpose of Section 1651 (a) as explicated in many cases is to correct an erroneous refusal of a lower court to hear a case on the merits.

Such a case was House v. Mayo.

In a habeas corpus proceeding, the District --

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: To protect the jurisdiction of the Court, quite right.

Under 125 --

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: Now Ferguson can be right and this Court would have jurisdiction under Section 1254 (1) if the Court of Appeals have done what it should have done, issued the petition for allowance from an appeal, but for the erroneous refusal of the Court of Appeals to hear the case, the Court could properly hear it under 1254.

It's our position that the erroneous refusal of the Court of Appeals to hear the case shouldn't preclude this Court from exercising jurisdiction which should otherwise would have.

Again, such a case was House v. Mayo where the petitioner had in the district court applied for a writ of habeas corpus.

The writ was denied.

He applied for a certificate of probable cause under 2253 of the judicial code.

This was denied in both the district court and the Court of Appeals.

Since the case was never in the Court of Appeals as the Court in House v. Mayo stated Section 1254 did not apply.

However, they did bring the case here under a common law writ of certiorari under 1651 (a) noting specifically that the purpose of 1651 (a) was to protect the jurisdiction of the Court in just such a case.

I think House v. Mayo is indistinguishable and principle on these facts from this case.

I think it sets out a clear foundation for the exercise of this Court's discretionary power under 1651 (a).

The third point raised by respondent in order to preclude this Court in considering the case on the merits involves the obvious fact that there are no evidentiary facts of the record -- in the record in this case.

Respondent then in his brief cites cases which quite properly hold that the absence of facts from a record will in many circumstances cause the Court to refuse to consider a constitutional question.

We recognize this point of law is quite proper in those cases.

However, those cases are not like this one.

This case involves an attack upon a statute on its face not as applied.

An attack on its face is almost necessarily required where the argument is, that the statute is void for vagueness because the very force of the argument is that no one can know whether or not the statute applies to him and if this violates due process.

Now, the facts of the record -- of record are obviously irrelevant to an argument of this nature.

It doesn't matter what the evidence showed below, the argument is that the statute didn't give the man the information he needed beforehand to determine whether or not a crime was about to be committed.

This distinctness is quite clearly recognized in the case of -- the cases I've cited, United States versus Petrillo and quoted from it.

I think the quotation from the Court -- from that opinion in our reply brief to show the Court quite clearly why the absence of facts from the record is no impediment at all to its consideration of the case on the merit.

Justice William J. Brennan: And we just – off earlier by saying nothing to it.

Mr. Charles W. Wolfram: I don't believe there is.

Justice William J. Brennan: -- view of it, wasn't it?

Mr. Charles W. Wolfram: Pardon me?

Justice William J. Brennan: You do have a view of it?

Mr. Charles W. Wolfram: Yes, I think it's fichus.

Justice William J. Brennan: Why?

Mr. Charles W. Wolfram: The argument as I can reconstruct it from the memorandum suggesting mootness is that since the maximum penalty which can be imposed for violation of the vagrancy statute is a sentence of 90 days and $300 and since the most that a person can be in prison for, for failure to pay a fine is one year and since the sum of 90 and one year is 15 months, that the case becomes moot after 15 months.

Mr. Charles W. Wolfram: Which is in effect a conviction to sentencing a man through indefinite probation.

The effect of this -- pardon me?

Justice Tom C. Clark: They can't put him probation any longer than the executive permits to the [Inaudible] can they?

Mr. Charles W. Wolfram: As I understand the imposition of sentence suspended type of sentence, this means that if at any time in the future, 15 months or 15 years in the future, the man is again brought before the Court, the Court can at that time impose sentence.

Justice Tom C. Clark: That would be explained with a -- by 15 years of to [Inaudible] or the 15 months effective this year.

Mr. Charles W. Wolfram: I think that's kind -- quite clearly can be done under the District of Columbia code provisions.

Justice Potter Stewart: Certainly, that's the matter of the District of Columbia law but that's -- your brother in opposition has exactly the opposite view of the law.

Mr. Charles W. Wolfram: He has stated an opposite rule of law (Voice Overlap) he has not attempted to substantiate it.

I don't think he can.

I know he can't.

I know it's not true.

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: No, I don't.

I didn't see the memorandum until late last night.

Justice Potter Stewart: He does cite some cases.

Mr. Charles W. Wolfram: He cites Massachusetts v. Mullen and other case -- Mellon and other cases for the proportion that the Court will not hear moot cases.

Justice Potter Stewart: St. Pierre against United States, Fishwick against the United States.

Mr. Charles W. Wolfram: I have not read them.

I don't know what they hold.

I would be very surprised if they hold anything to the contrary of our position on mootness one.

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: I believe is New York City at the present time.

Justice Tom C. Clark: He got that in District of Columbia?

Mr. Charles W. Wolfram: Yes, he has.

Justice Tom C. Clark: [Inaudible] New York?

Mr. Charles W. Wolfram: I believe he's moved to New York.

He comes to the District of Columbia periodically.

He was here most recently three or four months ago.

Justice Tom C. Clark: [Inaudible]

Mr. Charles W. Wolfram: I think not.

I don't think that he should be required to stay out of the District of Columbia in order to avoid raising the legal issue whether or not he can be sentenced under this -- the sentence is now two years old.

Justice Tom C. Clark: Within the sentence if he stayed in New York [Inaudible]

Mr. Charles W. Wolfram: No, he couldn't.

I don't think.

No, of course I did have to be before the Court for sentencing.

Justice Tom C. Clark: It's out of jurisdiction.

Mr. Charles W. Wolfram: That's right.

The merits of the case which this Court can and should consider involved as I've mentioned the constitutionality of Subsection 3 of the District of Columbia vagrancy statute.

The vagrancy subsection in question provides that the following classes of persons shall be deemed vagrants in the District of Columbia.

“Any person leading an immoral or profligate life who has no lawful employment and who has no lawful means of support realized from the lawful occupation or sorts.”

Our argument revolves around the words “leading an immoral or profligate life.

” We are not picking the statute apart.

Section 22-3304 of the District of Columbia code provides that in a prosecution for vagrancy under Subsection 3, the burden shall be upon the defendant to prove that he has lawful employment or has a lawful source of income, so that all the District of Columbia need prove in order to make out a prima facie case of vagrancy under Subsection 3 is that the defendant was leading an immoral or profligate life.

In our brief we have cited cases we still hold.

So in other words, our attack is upon the constitutionality of the prima facie crime as statutorily defined of vagrancy.

Justice John M. Harlan: Is there a reference [Inaudible]

Mr. Charles W. Wolfram: Yes, there is a record -- the record was final.

Justice John M. Harlan: What was the [Inaudible]

Mr. Charles W. Wolfram: The record does not contain a transcription of the evidence upon which petitioner was convicted in the court below.

There was no transcript made.

There never is and please courts or in the District of Columbia court of general session.

Justice John M. Harlan: That's what they got?

Mr. Charles W. Wolfram: No, it's not.

Justice John M. Harlan: Can you tell us what the [Inaudible]

Mr. Charles W. Wolfram: I wasn't at the trial, I don't know.

I've heard second hand, third hand.

Chief Justice Earl Warren: Has any judicial gloss been put on that phrase in the district?

Mr. Charles W. Wolfram: Leading an immoral or profligate life.

Chief Justice Earl Warren: Yes.

Mr. Charles W. Wolfram: Yes, there has.

Davenport, the District of Columbia cited in our brief and discussed at some length is probably the most important case.

I'll get to that.

So in other words, by force of Section 22-3304, the only question is whether the defendant was leading an immoral or profligate life.

The other elements of the offense must be established or disestablished by defendant in order to disapprove the crime of vagrancy.

As you might imagine, in the police court, the defendant's not come unprepared with witnesses and proof to prove that they have lawful employment or lawful source of income in most cases.

So, the proof of leading an immoral or profligate life will suffice in the great majority of cases for a conviction.

Justice John M. Harlan: [Inaudible] other than jurisdictions.

Mr. Charles W. Wolfram: We have in our brief on the merits, our main brief -- list of the vagrancy statute of all the states and those I believe, there are eight states specifically which have statutory provision somewhat like this.

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: No, we haven't been able to research the vagrancy ordinances [Inaudible]

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: I really have no idea, I rather doubt it.

Because most of the states have state enactments and most of the convictions are brought in under the state statute as I understand it.

Justice William J. Brennan: Well, if this -- the district statute is affirmed on the ground you suggest, would the same apply then to all those statutes and ordinances that you have listed in your brief?

Mr. Charles W. Wolfram: Unless the courts of the states which have these enactments have done a better job of limiting them so as to make them intelligible, I would think that the ruling in this case would apply to those court -- those statutes, yes sir.

I take no discomfort from the fact that there are states with other -- with statues much like this.

They've never been attacked on constitutional grounds.

They've never been determined -- their constitutionality has ever been determined by this Court or by any other court.

The doctrine that we are invoking to show the unconstitutionality of Subsection 3 is one very familiar to this Court.

The doctrine of void for vagueness which has been so well explained by a professor in Amsterdam in his article in the University of Pennsylvania Law Review.

The foundation of the doctrine is the Fifth Amendment Due Process Clause.

Due process as this Court sees it requires that citizens, the police and the courts be given sufficient guidance by penal statutes so that conduct which is prohibited and conduct which is permitted is with some degree of precision separated and distinguished.

This is obviously a task of weighing the merits of individual language in each individual case and for that reason, cases involving other attacks on other statutory language are not directly applicable.

One of the considerations in determining whether a statute is void for vagueness is whether it has a long history.

A history in which might lend it precision which isn't apparent in the face of the statute as it usually a determination made an economic criminality.

But assuming it can be made in personal criminality, I think that the history of vagrancy statues generally and the specific history of the District of Columbia vagrancy statute demonstrate only one thing that vagrancy statues are purposely drawn as broadly as possible so that the police can sweep within the net of the vagrancy statute all those who are vaguely undesirable and who the police wish to place under detention or who wish they -- whom they wish to punish for some reason.

They find their origins, vagrancy statues find their origins in the fore laws of medieval England.

Those were economic regulations and that suppressing the poor, keeping them within the enclosed to states, preventing them from moving abut England to seek higher wages and better employment.

They found their way into this country as part of the common law.

In the District of Columbia, the earlier statutes specifically applicable to the district as a whole that we've been able to find was the Act of 1892.

That Act did not in so many words mention leading an immoral or profligate life.

It did mention in its reenactment in 1898, a category of a person as described as all suspicious persons.

The Court of Appeals for the District of Columbia in 1900 in the case of Stoutenburg v. Frasier, struck down this part of the statute as unconstitutional on the grounds among others that it was unconstitutionally vague.

However, the statute remained on the books as reenacted in 1909 until the modifications of the vagrancy statutes in 1941.

The enactment of 1909 by the way was the first time that leading an immoral or profligate life appeared in the District of Columbia vagrancy statute.

Chief Justice Earl Warren: What year was that --

Mr. Charles W. Wolfram: 1909.

There were five attempted prosecutions which are preserved in appellant records under the Acts of 1892, 1898, and 1909, the most recent of which occurred in the 1920s.

All five cases resulted in reversals, only the Stoutenburg case it is true went off unconstitutional grounds, the other four went off on the grounds of the facts shown the record do not demonstrate to the crime of vagrancy had been committed.

The courts of the District of Columbia, the appellate courts were quite zealous in making sure that such a broad statute wasn't used to impinge upon the rights of citizens.

The statute mainly went unused until 1941, when Congress disturbed by the growing number of what they considered undesirable people in the District of Columbia sought to have the statute recodified and cast a new language.

Unfortunately, in Subsection 3, they preserved the language which has been introduced in 1909 of defining a vagrant is a person leading an immoral or profligate life.

Other subsections defined other types of vagrancy.

One of these types was also carried over from the language of the 1909 and earlier Acts and described the vagrant as an idle person, just as an idle person.

On the bill after passage by those Houses, went to the White House.

President Roosevelt vetoed the Vagrancy Bill on the grounds that the words “all idle persons” were not within what he considered to be permissible limitations of statutory language.

He did not address himself to Subsection 3.

After veto, the bill went back.

It was modified because the lead references to all idle persons, unfortunately not to persons leading an immoral or profligate lives and in that posture it was passed.

Significantly, the last section of the bill as finally enacted is found today in Section 22-3306 and it provides that nothing in the vagrancy statutes shall be taken to make criminal, picketing or other labor organization activities.

I think the inclusion of this exclusion is highly significant.

The memories of a highly vocal lobby in Congress obviously saw that language as loose as persons leading an immoral or profligate life might very well be used by unsympathetic prosecutors and judges to disrupt the labor movement.

They were tenet to this and had to put into the statute a specific disclaimer of coverage over labor activities.

Unfortunately, the poor without lobby went there and have their exclusions put in.

And Mr. Hicks and others like him have been convicted since 1941 on numerous cases of leading immoral or profligate lives.

Under the void for vagueness doctrine, another important consideration is whether the courts of a jurisdiction responsible for the statute have in their appellant process to find it with any greater precision in the language of the statute itself possesses.

In the District of Columbia, there have been a number of appellate decisions on the wording “leading an immoral or profligate life.”

The most important of these is Davenport versus the District of Columbia.

In that case, the Court of Appeals -- the local Court of Appeals, held that leading an immoral or profligate life was to be defined by reference to Webster's Second International Dictionary.

Not surprisingly, the definitions of moral and profligate, as viewed in Webster's Second International Dictionary and another dictionaries, the citations to which and the quotations from which appear in appendix to our brief, are just about as broad and amorphous as you might wish.

To get the full force of exactly how amorphous, I would like to read briefly from the definition given by the Court in Davenport versus the District of Columbia.

The Court said, “Webster's Dictionary defines profligate as completely given up to dissipation and licensciousness, broken down in morals and decency.”

The Court says, “It has been said that immorality is not necessarily confined to matters sexual in their nature.

It may be that which is contra bonos mores or not moral, inconsistent with rectitude, purity, or good morals contrary to conscience or moral law, wicked, vicious, licenseless as an immoral man [Inaudible].”

Its synonyms are corrupt, indecent, depraved, dissolute and its antonyms are decent, upright, good and right.

It's submitted that any penal offense defined in terms of be good and be right is no penal statute at all.

I don't think anyone at all can be expected to know what a man has to do, what he can't do in order to make sure that he doesn't come within this sweep of such a penal statute.

Davenport stands alone I think, in all the cases decided under the -- decided in an attempt to give more precision to statutes, penal statutes, which have gone so far to broaden language, which is already impossibly broad.

I think the problem is especially acute because convictions are not taking place in courts of record, in courts where the defendants ordinarily have counsel of their own or appointed counsel that are taking place in police courts.

These are courts where defendants are brought in groups, where testimony is by one policeman where the judge is highly unsympathetic to the views and arguments of defendants.

To let a policeman loose on the streets with the word “good” as his law and all that he need shown in order to justify an arrest and attention of a citizen, I think is patently unconstitutional.

I think it violates every tenant of Due Process.

To let a judge sit in judgment upon penal offenders with his only standard that of right or wrong, is under any definition a void for vagueness, a void statute.

Several questions are presented by the Davenport definition of “leading an immoral or profligate life.”

For example, what specific evil or what group of evils that Congress wished to circumscribe within the words “leading an immoral or profligate life”?

Are they petty acts alone?

I don't know.

I think not.

I think that major acts would also be not good and not right.

There's' nothing in the statute to distinguish between them.

Perhaps, one might have thought immoral or profligate life refers to sexual aberrations.

However, Davenport tells us that matters immoral are not confined to matters sexual in nature.

They concern a lot of other things including things that aren't right and aren't good.

So, in other words, there's no limitation in the framework of sexuality and extends to other acts as well.

It was a statute attempted -- was the attempt of a statute to expands acts or other recognized categories of crimes?

I think not because if this was the purpose of the statute, it would be a mere redundancy.

They are already on the books of the District of Columbia, ample provisions dealing with theft, with murder, with rape, with petty larceny, with things of that nature.

I think it would be unreasonable to suspect that Subsection 3 was meant to cover only those acts.

Does immoral and profligate life mean acts committed in public or is it confined to acts committed in private?

I don't know.

I think very well, it might be applied to acts committed in private.

There's nothing in the statute that tell us one way or another.

Does “leading an immoral or profligate life” refer to interference with other people, interference with other people's property or simply the interference with other people's sensibilities?

I suggest that it covers all three.

I suggest that the Davenport definition tells us that it covers all three.

Are words alone enough to constitute the offense of “leading an immoral or profligate life?”

I don't know, but I think they might be, and this brings us to perhaps the most important reason why leading an immoral or propagate life should not be allowed to remain on the statute for us.

This Court, in areas of free speech and free press, the freedoms of expression has been very zealous to strike down statutes, which possibly might be used to impinge upon the freedoms of expression.

I think if ever there was a statute which might be used to impinge upon the freedoms of expression, it's Subsection 3.

Leading an immoral or propagate life is giving a speech under a license from the Department of Interior on Fergus Square about the tenants of Nazism leading an immoral or profligate life.

When I make my private moral judgments, I think so.

If I was a judge, if I was a policemen in the District of Colombia, I might feel compelled to think so under Subsection 3.

One can think of other numerous examples of possible abuses of the freedoms of expression by virtue of Subsection 3.

It is true that in this case, it has not been shown because of the absence of a trial record whether in fact, Mr. Hicks was engaging in constitutionally protective activity at the time of his arrest, but this isn't the important thing where the constitutional rights of freedom of expression are concerned, this Court will allow a person to invoke the constitutional rights in effect of a third party so long as the statute under which he is convicted, can under its construction by the courts of that jurisdiction the use to impinge upon freedoms of expressions and such a case was NAACPB v. Button.

There was no showing that to register as required by the Virginia Act in the Button case, would impinge upon any constitutional right of the NAACP or its members.

The Court however, struck down that particular part of the statute that's unconstitutional because it could very well have been used to impinge upon the constitutional rights of the members of the NAACP.

Subsection 3, I suggest again, fits the category very well.

It could very well be used to impinge upon freedoms of expression.

Our personal confidence in the ability of the judges of the District of Columbia, Court of General Sessions to zealously uphold their oath of office and protect the constitutional rights of defendants as much I subjectively believe in it, cannot be a reason for allowing Subsection 3 to continue in existence as a valid statute.

The very purpose of the First Amendment freedom is to take out of the hands, the subjective hands of judges and policemen, the permission to exercise those rights.

It may will be that never a Subsection 3 had been used to violate anyone's constitutional rights.

This would be a remarkable I suspect.

It's also no reason for its validity because it can very well be used to impinge upon rights.

Justice Abe Fortas: Mr. Wolfram.

Mr. Charles W. Wolfram: Yes sir.

Justice Abe Fortas: May I call your attention to the transcript at record page 6, page 5 and 6.

At page 6 under the heading of motion for arrest of judgment, there is set forth certain facts which I read as a rule purporting to relate to this case.

This is a motion to set aside the finding of guilty and dismiss for new trial on motion for the arrest of judgment which you as counsel for Mr. Hicks filed.

And on page 6 as I stated, there is set forth certain statements which I would construe as a description of the facts in this case.

Did you so intend them?

Mr. Charles W. Wolfram: They were intended as the description of the evidence presented at the trial.

Then as now, I hadn't been at the trial.

I was relying upon second, third and fourth and the counsel of what the evidence had been.

I believe them to be true.

I'm not sure of though.

Justice Abe Fortas: You still believe them to be true.

Mr. Charles W. Wolfram: As far as I know, they are --

Justice Abe Fortas: This was not -- this was not a verified plead, was it?

Mr. Charles W. Wolfram: I don't believe it was, no.

Justice Abe Fortas: No verification shows on the record and --

Mr. Charles W. Wolfram: No.

But I couldn't very well have verified my then belief that that is what the evidence had shown.

Justice Abe Fortas: Right.

Now, second thing if you don't mind, second thing I want to ask you about -- it appears in the statute involved here on page 60 of your brief, brief for petitioner, the white document.

And if you will look at 22-3304 and it is set forth there, you will see that it states some fact that the court may suspend the imposition or execution of the sentence for such period as the court may direct and the court may and or before the expiration of such period remand such sentence or cause it to be executed.

Now I take it that it is your position and please correct me if this is wrong, your position that at least in this case, the court's jurisdiction to impose a sentence, couldn't be exercised at anytime hereafter.

Is that what you're telling us?

Mr. Charles W. Wolfram: That's what I'm telling, yes sir.

Justice Abe Fortas: I'm not addressing myself to mootness point.

Mr. Charles W. Wolfram: The mootness point.

Justice Abe Fortas: Now as I look at the actual order entered by the court as set forth in the transcript of record it does not appear that the trial judge fixed any period whatever within which period might be suspended --

Mr. Charles W. Wolfram: That's right.

Justice Abe Fortas: -– in which the imposition of sentence might be suspended.

In other words, say, trial judge ordered here that the imposition of sentence shall be suspended and did not express by the time, is it your understanding?

Mr. Charles W. Wolfram: Yes sir.

Justice Abe Fortas: But nevertheless it -- and despite the language of the statute is it your contention here as related to the mootness point that the power of the judge here to impose sentence continues indefinitely time without in.

Mr. Charles W. Wolfram: I don't want to overstate.

I don't know whether it's time without in.

I think it's -- at least until now, I think that's the only question really.

Justice Abe Fortas: Well that doesn't quite do it, does it because it going to take us few days to decide this case anyway.[Laughter]

Mr. Charles W. Wolfram: I think in the absence of a specific time limitation in the judgment of the Court, one must read into the judgment imposition of sentencing and suspended indefinitely.

I think the burden is upon those suggesting mootness to show that that indefinite period is now ended.

I don't think they can.

Justice Abe Fortas: You haven't raised the constitutional question with respect to that probation of the statute if it has the effect that you think it has.

Mr. Charles W. Wolfram: I think it will be time enough if he's again brought before the Court and sentence is imposed upon him to raise that particular constitutional point.

I think it's clear there is a great constitutional question presented if this were attempted. I'm not suggesting that it hasn't been done in the fast however.

I don't know.

The records on the Court of General Sessions are quite inadequate.

Other attempted limitations upon the District of Colombia vagrancy statute are set out in our brief and explained there.

They add up to one thing that the judicial explication of Subsection 3 hasn't added anything to what we can learn from the words themselves.

There are several cases in this Court, none of them majority holdings which are instructive however on the judicial attitude toward the words immoral, as a word immoral specifically.

Those are also discussed in our brief and I'd like to discuss particularly the case in Musser v. Utah.

Musser, M-U-S-S-E-R v. Utah --

Unknown Speaker: [Inaudible]

Mr. Charles W. Wolfram: Yes sir.

In that case, the constitutionality of the Utah conspiracy statute was in question and that attempted the punish for conspiracy among other things, “Any person who conspired to do any act injurious to public morals.”

The case came to this Court for some reason which isn't clear to me the constitutionality of the words any act injurious to public morals haven't been challenged in the lower courts.

This Court on it's hearing of the argument, the first argument of the case suggested the counsel that there was a great constitutional question and called for reargument.

The reargument was had and at that time, it appeared that the Utah Supreme Court haven't passed on the question so the majority of this Court sent the case back there in an opinion which is highly instructive on the Court's feeling about the use of the word moral in the penal statute.

Not surprisingly, this Court was very dubious of the constitutionality of that particular word in the penal statute and it sent the case back to Utah with that dubiety.

Not surprisingly, the Utah Supreme Court thereafter held that the criminal conspiracy statute was unconstitutionally vague and indefinite, and struck it down and reversed the convictions.

I think that's the nearest thing I can point to as a holding in this Court, but I think the sense of other opinions which we have cited in our brief, quite clearly indicate that the words leading an immoral or profligate life are unconstitutional.

Thank you.

Chief Justice Earl Warren: Mr. Pair.

Argument of Hubert B. Pair

Mr. Hubert B. Pair: Mr. Chief Justice, may it please the Court.

If I may, I would like to address myself first to the mootness question.

The Court of General Sessions is a court of record.

Court shorthand reporters are available upon the request of defendants in the criminal division.

The court is required under mandate of the -- our appellate courts to appoint counsel for criminal defendants.

The petitioner here, having been convicted of the offense of vagrancy could have as we have indicated in the memorandum been punished by a fine of $300 or imprisoned for a term of 90 days or both.

And upon default in the payment of the fine, he could have under our law imprisoned for an additional period of one year.

In our code, D.C. Code, the 1961 Edition, Supplement IV, and this is not -- does not appear in the record and with the permission of the Court, I would like to read it, it isn't too long because it does bear very substantially upon this mootness question.

Justice Potter Stewart: This is not in your brief on --

Mr. Hubert B. Pair: This is not in the brief.

This goes to the mootness question.

Justice Potter Stewart: But it is not in your memorandum on mootness here?

Mr. Hubert B. Pair: We cited but we did not – of course we were anxious to get it in, we did not quote it, but we did cite the code section.

The section reads, “In criminal cases in the District of Colombia Court of General Sessions, the court may upon convictions suspend the imposition of sentence or impose sentence and suspend the execution thereof, for such time and upon such terms as it deems best if it appears to the satisfaction of the Court that the ends of justice and the best interest of the public and of the defendant would be served thereby.

In each case of the imposition of sentence and the suspension of execution thereof, the court may place the defendant on probation and under the control and supervision of a probation officer.

The probationer shall be provided by the clerk of the court with a written statement of the terms and conditions of this probation.

At the time when he is placed thereon, he shall observe the rules prescribed to his conduct by the court and report to the probation officer has directed.”

And then it reads, “A person may not be put on probation without his consent.”

Now, it is undisputed in the record as noted by Mr. Justice Fortas, this -- the sentence was -- imposition of sentence was suspended.

The record does not indicate that any conditions were imposed.

And since it is our understanding with this type of motion that we often that it can go out of the record.

We represent to the Court that in no instance have we've been able to find that following the suspension of the imposition of sentence, absent conditions imposed and the violation of those conditions, in no instance have we've been able to find a case in which a man has been brought back into the Court following the suspension of imposition of sentence.

In fact the practice is to in effect, tap the man on the risk and tell him to go away and behave himself and that is borne out by the record which indicates only the notation imposition of sentence suspended.

Now, assuming before the argument that they are remand in the district court, that we assume that only for the argument, some latent power to bring this man back into court in connection with his judgment of conviction.

Certainly, upon the expiration of the maximum period, about which he could under any circumstance be confined that there remains nothing upon which this judgment could operate.

So we submit to the Court on the mootness question that this case has in effect the question which is urged here as an effect become purely academic.

Justice Abe Fortas: Mr. Pair.

Mr. Hubert B. Pair: Yes Mr. Fortas.

Justice Abe Fortas: [Inaudible]

Mr. Hubert B. Pair: No.

I said assuming that there remand in the court and we don't agree that any such power remain, but just assuming that it did, if there remain some latent power in the trial court to bring this man back before the court for the purpose of dealing with it, we say that on -- that's certainly on reason the -- there would be no basis for doing that after the expiration of the maximum term for which he could have been sentenced in the first instance.

I think it is implicit in the statute which had it's urged in the 1953.

It did a practice, it has grown up in the criminal division to suspend the imposition of sentence and yet there was no authority for it.

So in 1953, at the instance of the commissioners, the Congress approved legislation which permitted the suspension of the imposition of sentence.

Now, this statute -- and this is on the same point, defers substantially from the Federal Probation Act.

Justice Abe Fortas: [Inaudible] one of those statute is the vagrancy statue with which we're here concerned and I think there's a similar provision in the statue on prostitution in the District of Columbia Code and I think those have been on the statue books for a while.

Now the general statute to which you refer was enacted in -- first enacted in 1953, is that what you're saying?

Mr. Hubert B. Pair: That's correct, yes.

Justice Abe Fortas: Is it your view that the general statute supersedes the special provisions in the vagrancy statute and the prostitution statute?

The general statute that covers all cases, the vagrancy statue of course would apply there.

But the vagrancy statue is much more restrictive than the general statute because -- unless conditions are imposed, then of course it'd be no condition to be violated and then there no circumstances could he brought back into a court because the vagrancy statute certainly contemplates that the imposition of sentence is suspended that conditions will be imposed and upon violation of those conditions, a man would be brought back before the court.

Justice William J. Brennan: [Inaudible] any of the statute, this one at page 60 of the petitioner's brief.

It says that the court shall have power, does it not, to suspend imposition “for such period as the court may direct.”

Now, my question is this.

Does that means for example if the sentencing judge said, “I'm going to suspend the imposition of sentence for three years,” could you do that on to that language?

Mr. Hubert B. Pair: I don't think so Justice Brennan.

Justice William J. Brennan: There's nothing in -- is there anything in that -- as these wordings might suggest that he could not.

Mr. Hubert B. Pair: No, not from the language of the statute but immediately preceding sentence is certainly contemplates of the court would impose conditions before it get suspended the imposition of sentence.

And then under the general law which says that no person can be put on probation without his consent.

So Congress evidently envisioned the situation such as this where a person did not want to be subjected to conditions, that he had preferred to take his chance in the court and perhaps in the appellate courts rather than submit to conditions which he might feel would be burdensome.

Justice William J. Brennan: Well if that's right, is the imposition of conditions a -- it sounds like condition to the imposition -- of the suspension of the imposition of sentence?

Mr. Hubert B. Pair: I would think that to be implicit, that unless conditions were imposed --

Justice William J. Brennan: Well then there has been no sentence here at all if that's right, isn't it?

Mr. Hubert B. Pair: There's has been no sentence.

Chief Justice Earl Warren: Mr. Pair [Inaudible]

Mr. Hubert B. Pair: Yes Justice Warren.

Chief Justice Earl Warren: It's an idle act from the part of the court to say, judgment is suspended?

Mr. Hubert B. Pair: No, Justice -- Chief Justice Warren.

I think the Court was acting pursuant and merely -- in suspending the imposition of sentence, was acting pursuant to the humanitarian aspects of the general statute.

The purpose of that statute being to enable the court to dispose of cases with a warning relevant to impose the sentence.

Chief Justice Earl Warren: You mean it's tantamount to saying there shall be no punishment?

Mr. Hubert B. Pair: I think so, very definitely Chief Justice Warren.

Whenever there --

Justice Hugo L. Black: Why couldn't there be a sentence imposed now?

Mr. Hubert B. Pair: Because I think the empathy -- because of the expiration of the period for which he could have been --

Justice Hugo L. Black: But he wasn't sentenced at all, you say it's void sentence and if that's the case, you have a man who's convicted and never been sentenced.

Why couldn't he sentenced now?

Mr. Hubert B. Pair: Because the suspension – imposition of sentence was suspended.

Justice Hugo L. Black: Imposition of sentence is suspended but you say that there's no sentence at all had been imposed?

Mr. Hubert B. Pair: No sentence was imposed but the judgment of the Court was and that judgment remains undisturbed.

Chief Justice Earl Warren: But Mr. Pair, I know that you must have some theory on that -- is if he has – if it is suspended for any period, certainly a man would be entitled to know -- if you don't know how would he know?

Mr. Hubert B. Pair: Well, I think he would go by the penalty provisions of the act.

Chief Justice Earl Warren: I beg pardon?

Mr. Hubert B. Pair: The penalty provisions of the act.

Chief Justice Earl Warren: In other words, he is suspended for one year plus 90 days?

Mr. Hubert B. Pair: Well, certainly not longer than that --

Chief Justice Earl Warren: Well, if not that long, how much less?

What is the limitation on the suspension of the -- of a sentence?

Mr. Hubert B. Pair: There was a man -- but not called -- this man what bears on it I think Chief Justice.

Chief Justice Earl Warren: Beg pardon?

Mr. Hubert B. Pair: What I think the answer to it is, is in the statute which the first sentence of Section 16710, this is the Act of Congress.

The first sentence which has to do with the suspension of imposition of sentence --

Justice Hugo L. Black: But not [Inaudible] execution of sentence.

Mr. Hubert B. Pair: Says nothing about the execution and says nothing about conditions, the first sentence.

But in the second sentence, it does speak about conditions.

Now the first sentence merely reads that if it appears in the fact of its -- that the ends of justice and the best interest of the public would be served thereby, the Court may suspend imposition of sentence.

Chief Justice Earl Warren: For how long?

Mr. Hubert B. Pair: It doesn't say it.

Chief Justice Earl Warren: What do you say?

Mr. Hubert B. Pair: I would say that it is the imposition of sentence is suspended forever.

I don't think there would be any conditions under which you could bring him back because absent --

Chief Justice Earl Warren: Then Congress intended that -- to have the court to perform an idle act?

Mr. Hubert B. Pair: No.

I think in the first sentence to do -- to be moved by humanitarian considerations when the court felt that the best interest to the public and of the defendant would be served thereby.

Justice William J. Brennan: This is to say that this was a power in the trial court of understanding this --

Mr. Hubert B. Pair: Yeah.

Justice William J. Brennan: By this device of imposition of sentence suspended without conditions.

Mr. Hubert B. Pair: Without condition.

Justice William J. Brennan: Without conditions and that that in effect was to say, this is a case and that Congress empowered the judge to do this were all that ever impose the sentence and none shall ever be impose not withstanding the finding of guilt.

Mr. Hubert B. Pair: Yes Justice Brennan, that is our position.

Now with respect to the second sentence, it is otherwise.

I think Congress contemplated there, that if execution of a sentence was suspend or if imposition of the sentence was suspended with conditions, then it would be otherwise set upon violation of those conditions, the criminal defendant could be brought back before the Court and dealt with according to law.

Chief Justice Earl Warren: Where does it say if it's -- if sentence is suspended with conditions.

Mr. Hubert B. Pair: Sir where does it say that?

Chief Justice Earl Warren: Yes.

Mr. Hubert B. Pair: In case of the imposition of sentence --

Chief Justice Earl Warren: Beg pardon?

Mr. Hubert B. Pair: I was reading the -- read on the statute?

Chief Justice Earl Warren: Yes.

Mr. Hubert B. Pair: In the case of the imposition of sentence.

Chief Justice Earl Warren: Imposition of the sentence.

Mr. Hubert B. Pair: Of sentence.

Chief Justice Earl Warren: Yes.

Mr. Hubert B. Pair: And the suspension of execution thereof.

Chief Justice Earl Warren: Yes.

Mr. Hubert B. Pair: The court may place the defendant on probation under the control and supervision of the probation officer.

Chief Justice Earl Warren: Yeah.

Mr. Hubert B. Pair: The probationer shall be provided by the clerk of the court with a written statement of the terms and conditions of his probation at the time when he's placed thereof.

He shall observe the rules, and then a person may not be put on probation without his consent.

Justice Abe Fortas: But that statute doesn't govern here about the vagrancy statute which covers the same ground covered here, is that what you told me earlier, did I misunderstand you.

Mr. Hubert B. Pair: No, I think the two statutes are entirely consistent.

I think the general statute is broad enough to cover all cases and I think it's broad enough to cover the case of a present convicted under the Vagrancy Act, In effect Congress, what it did with respect to this first sentence, was to enable the trial -- to empower the trial judge in the criminal case to say to a criminal defendant and the less serious criminal offenses to go and send no more.

Justice William J. Brennan: I wonder why Congress send to the -- better this imposition of sentence suspended, I was in a couch in the physiology of the judge shall have the power in proper cases not to impose anything.

That's what you're telling us in effect to what was done here and that this is what the statute empower these judges to be.

That's funny language, isn't it?

Mr. Hubert B. Pair: And what have been the --

Justice William J. Brennan: Suspend imposition of sentence?

Mr. Hubert B. Pair: Perhaps the language could have been the clearer, but this is a language and it does seem to be consistent that Congress was talking about two things.

Justice William J. Brennan: I notice in the official record apparently the judge uses stamp for this, doesn't he?

Isn't it that he said that this -- the trial of record on page 3 and 4 is -- at page 4 up at the top, I'm looking at the right thing, I'm at --

Mr. Hubert B. Pair: And the clerk -- the clerk under the direction of the trial judge affixes thing --

Justice William J. Brennan: Does that suggest that this is a sort of thing that's done quite often?

Mr. Hubert B. Pair: This is a practice.

Justice William J. Brennan: Okay.

Justice Abe Fortas: Mr. Pair?

Mr. Hubert B. Pair: Yes sir.

Justice Abe Fortas: I think it's so important for us to understand this situation.

Let us suppose an another case that a man and let's called Mr. Hicks, is precisely the same situation there, and gone right back to Dupont Circle and had played his guitar and been unshaven, and unbewelled and whatever else Mr. Hicks did, and it he'd been arrested and brought into court.

Now as you construe this statute, the vagrancy statute, and the sentence in this case, record in this case, would it then have been possible for the judge to impose a sentence on him not only for the second crime of vagrancy but also for the first crime of vagrancy pursuant to this power that the judge reserved.

Mr. Hubert B. Pair: We do not think so Justice Fortas for this --

Justice Abe Fortas: Do you think that would have been unlawful?

Mr. Hubert B. Pair: I think it would have been.

Justice Abe Fortas: And that's the position in the District of Columbia?

Mr. Hubert B. Pair: That is the position and, if I may I'd like to state why it is our position.

In the usual case when the judge decides to suspend imposition of sentence, this is a ritual.

The court will save the -- the court suspends the imposition of sentence and will take your personal bond not to repeat the offense.

Then the defendant holds up his hand and he is dismissed, but in that particularly instance, he has given his bond not to repeat the offense and if he does repeat the offense, of course he can be brought back and be subjected to be dealt with by the Court.

Justice William J. Brennan: [Inaudible] this vagueness argument it ought to be addressed to this sentencing provision.[Laughter]

Mr. Hubert B. Pair: Great many years ago and that in substance as the district's position on the vagrancy -- I mean, on the mootness question.

We felt it – out duty to bring it to the attention of the court, we think the question is substantial and --

Justice William J. Brennan: May I ask you this Mr. Pair?

I think our practice ordinarily is when something is moot is recognizing this to wipe the slate clean on federal side all the way down to the initial judgment.

Is this a case where we can do that if you're right on mootness?

Mr. Hubert B. Pair: I think it would be wiped out to the -- down to the District of Columbia Court of Appeals.

Justice William J. Brennan: It seem we don't do it that way as -- if I'm correct in my recollection, I think the ordinarily where -- where we find something as mootness we move -- we set aside the judgment and direct wiping of the slate all the way down to the initial judgment?

Mr. Hubert B. Pair: Yes, the district suggest Justice Brennan that this question of mootness became ripe only upon the exploration, giving look and that the case in a light most favorable to the petitioner.

It became ripe only upon the expiration of the -- of that -- of one year and 90 day period.

Justice William J. Brennan: And that would have been about September of 1964?

Mr. Hubert B. Pair: About December of 1965 -- no, about -- that would--

Justice William J. Brennan: I thought the judgment was June 13, 1963, is that right?

Mr. Hubert B. Pair: Yes.

The judgment, if measured from that date, it would long – now we were -- if given them -- given the petitioner of the benefit of every possible doubt by dating the period from the denial of rehearing en banc by the United States Court of Appeals.

I think more properly, I have -- the period should run from the date of the judgment -- of conviction.

Chief Justice Earl Warren: But not very long.

Mr. Hubert B. Pair: No.

I mean, 90 days on that period.

I mean one year and 90 days running commencing to run on the --

Justice William J. Brennan: Well that would be September 1964.

Mr. Hubert B. Pair: 1964.

Chief Justice Earl Warren: You are to find to be just as moot when the judgment was ripe –-

Mr. Hubert B. Pair: Chief Justice Warren, I think it would be, but assuming that there remained some latent power in the court and I don't think there remained in the latent power under the second stanzas of this particular case.

Had the court taken this man's personal bond then it would be our position that the mootness appear would commence to run at the expiration of the maximum period for which he could have been confined.

Chief Justice Earl Warren: Well, under your main argument that it becomes moot as of the time the judgment was rendered, how could a man ever get his rights vindicated up here?

How could he ever do it?

Mr. Hubert B. Pair: Well, under the procedure we have in the -- he has -- and there has been a case on this.

Chief Justice Earl Warren: Beg pardon?

Mr. Hubert B. Pair: As -- we do have a case in the -- in our jurisdiction in which the right of a criminal defendant who is sentenced -- the imposition of sentence was suspended.

His right to appeal was challenged on the ground and there was nothing upon which the judgment could operate.

The District of Columbia Court of Appeals held that he had a right to challenge the judgment of conviction even though the imposition of sentence had been suspended.

Now there were peculiar facts there because they was so serious moral charge involved and that may have influenced the court to its judgment.

But what we say is, that there would be a right to appeal from the judgment of conviction even though imposition of sentence had been suspended.

Justice Potter Stewart: That right was certainly accorded in this case, wasn't it?

Mr. Hubert B. Pair: Yes Justice Stewart.

Justice Hugo L. Black: But I ask you to answer that you -- if we consider the case moot when the time of judgment was entered.

Mr. Hubert B. Pair: Well, I said under the peculiar facts that I perhaps conceded too much, I can see -- that say, I think it is moot but not subject to -- but not moot to the point of defeating the man's right to an appeal because he did appeal and our courts have said there is.

Justice Hugo L. Black: Just a bit moot.

Mr. Hubert B. Pair: Pardon --

Justice Hugo L. Black: Just a little bit moot.[Laughter]

Mr. Hubert B. Pair: Well certainly, moot for the purpose of -- for the purpose of the proceedings before this Court.

Justice William J. Brennan: Well it would be the same business wouldn't it Mr Pair because a judge had power and not to sentence, he didn't sentence, it's moot and therefore a conviction stands and the man can do nothing about it.

It wouldn't make sense, doesn't it?

Mr. Hubert B. Pair: It would make sense.

I think, I withdraw what I said about the mootness from the day to (Voice Overlap).

I said I withdraw what I said about the mootness dating from the judgment of conviction and to go back to my other point that we consider that the -- that it would be moot from the expiration of the maximum period for which he could have been confined.

Chief Justice Earl Warren: But how does that square with your statement that it's practically an idle act for the judge to say that the judgment is suspended as he did in this case and that as -- he has no power to do anything further.

I think the court is doing exactly what the Congress authorized to do and what the Congress wanted it to do in this peculiar type of case, that rather than subject a person.

And the court would be -- perhaps would be required to find him guilty or else the Court would be guilty of administering an uneven justice, but the court would not be required to imprison, to punish him.

If in the interest to the public and the interest of the defendant, the court felt that the best interest would be served by suspending the imposition of the sentence.

It's your contention as I understand it that at the end of 30 days, that case becomes moot so far as ever coming to this Court is concerned.

Mr. Hubert B. Pair: No Chief Justice Warren.

If the court was interested in keeping control of him for 30 days, the court would have been impose sentence and suspend that the execution of the sentence and then upon conditions and if you violated the condition to bring him back and require him to serve in 30 days.

Chief Justice Earl Warren: I give you 30 days to suspend the judgment.

Mr. Hubert B. Pair: I don't know of any authority that the trial court would have to do that.

Chief Justice Earl Warren: When this -- do you know of any direct authority that says he can do what he did here and make --

Mr. Hubert B. Pair: The statute itself -- the statute.

The act of Congress itself authorizes him to do it and the language that I submit Mr. Chief Justice is language that which is entirely unambiguous.

It says in clear language if -- if that the -- if the ends of justice and best interest of the public and of the defendant will be served thereby.

Now the trial court evidently in his wisdom felt that the ends of justice would be served by telling this defendant to go and say no more.

Justice Hugo L. Black: May I ask you if there is a misprint on the page 60 on this fact that it says -- it said, the imposition or execution of sentence maybe suspended for such period that the court may direct, and the court may and or before the expiration of such period remand such sentence.

Is that remand in the act or does it say may impose?

Mr. Hubert B. Pair: No.

I think remand does it prop -- I think --

Justice Hugo L. Black: What's meant by that, remand it to whom and where for what?

Mr. Hubert B. Pair: I mean, recall it I suppose and suspend this -- not to suspend it but to wipe it out or to cause it to be executed.

To either, would not to remand it --

Justice Hugo L. Black: Do you think that's the correct word?

Mr. Hubert B. Pair: I --

Justice Hugo L. Black: You haven't [Inaudible]

Mr. Hubert B. Pair: This is in the partition of the brief and --

Justice Hugo L. Black: The thing it bothers me, I don't see how we can hold what you say without completely rewriting this part of the sentence.

It's plainly is intended or agree with it to give the trial judge power to suspend the sentence such period as he may direct.

It doesn't say anything about --

Mr. Hubert B. Pair: Conditions.

Justice Hugo L. Black: Well, condition has -- it doesn't leave any impression there that he could suspend it only for a period for which a sentence could be imposed.

Mr. Hubert B. Pair: Well Justice Black, we have two Acts of Congress, and they are not inconsistent.

I think the --

Justice Hugo L. Black: I am talking about this act.

How could we construe that -- that way without just putting words in it that not there and taking some out with others?

Mr. Hubert B. Pair: But we can construe the -- couldn't apply the other act if there is any --

Justice Hugo L. Black: That would be a different thing.

So far as this one is concerned, it would apply -- how can we do what you ask without adding sentence and take something?

Mr. Hubert B. Pair: But I think this -- I think you could do it this way Justice Black.

The record does not disclose that the court did what the Act authorized it to do, and that is to impose condition.

Justice Hugo L. Black: I am not talking about -- I am talking about the Act, not the record.

Mr. Hubert B. Pair: I am speaking of the Act.

The Act says, “The court may impose conditions upon any person convicted.”

The record does not show that the court impose any conditions.

So therefore, there would be no circumstance under which he could violate any conditions and if he couldn't violate any condition, he couldn't be brought back before the court.

Justice Hugo L. Black: Well that's just an uncompleted action on the part of the judge, isn't it?

Mr. Hubert B. Pair: Well, I think it'll be a violation of due process to bring him back now and impose conditions upon him.

While the -- at the instance of a defendant, the sentence may be correct.

I --

Justice Hugo L. Black: Well all -- isn't that in line with the original idea that court should involve where the statute -- while the law did not give them the right to grant probation, and they wanted to do so.

As I recall, as I haven't for for years, but as I recall it, courts evolve this plan to say, “Well, we would just want to impose any sentence at all.”

We just wait about imposing sentence and then if we want to later, we'll impose the sentence.

That's seems to be the concept upon which this statute is vague.

Mr. Hubert B. Pair: Well, this -- I think --

Justice Hugo L. Black: I am not talking about execution, finding the execution.

I am talking about suspending -- putting any sentence at all.

Mr. Hubert B. Pair: But that Justice Black, whatever was in the mind of the Congress and subsequently passing the general statutes, whatever doubt there may have existed was removed by the language and the general statute.

Congress said specifically what the -- in criminal cases in the District of Columbia Code of General Sessions, what the judge can do.

Justice Hugo L. Black: Otherwise, again --

Mr. Hubert B. Pair: And even if there was ambiguity in the Vagrancy Act, and it doesn't appear to me, it seems to be entirely consistent on any view of this record because no conditions, whatever were imposed upon this criminal defendant.

Chief Justice Earl Warren: Is this just an isolated case, an isolated judgment or is this more or less common practice in the district -- does -- do the judges normally or often say just what this judge said here?

Justice Abe Fortas: When the -- there are instances that which shown to the vagrancy statute, the judge does impose conditions, is that right?

Mr. Hubert B. Pair: Yes Justice Fortas.

Justice Abe Fortas: And do those appear on the record inquiry as a matter of the way that court is run or do they just take the form of a lecture which to the person who is convicted?

Mr. Hubert B. Pair: No.

They were conditions imposed.

The trial judges required tends it all to a probation officer, big --

Justice Abe Fortas: Yes.

But not -- let's talk about vagrancy now.

If we'd look -- so let's suppose the judge in this case had said to Mr. Hicks, “I'm not going to impose sentence which you to use “you going to send no more or don't loiter around Dupont Circle.”

Would you expect to find that on the official record or wouldn't that just be this rubber stand?

Mr. Hubert B. Pair: No, that would be unofficial record made of it.

Justice Abe Fortas: Do you think from --

Mr. Hubert B. Pair: It would be in the criminal file, the terms of the conditions.

Justice Abe Fortas: You feel confident about it?

Mr. Hubert B. Pair: I'm confident of that.

Justice Abe Fortas: And unless --

Justice William J. Brennan: Conviction --

Mr. Hubert B. Pair: But not -- now what would be and I say would be the notation take -- the court takes his personal bond, that would be stamped on the information.

Justice William J. Brennan: But would -- there would -- would there be stamp on that condition's imposed?

Mr. Hubert B. Pair: Only if conditions were imposed.

Justice William J. Brennan: That's what I mean.

Mr. Hubert B. Pair: Yes --

Justice William J. Brennan: Then it would have appear on the record?

Mr. Hubert B. Pair: But the conditions themselves would not appear on the record.

Justice William J. Brennan: Just the -- something like conditions imposed.

Mr. Hubert B. Pair: Yes, that would -- yes.

And the reference then would be to the criminal file.

Now if the Court had taken this personal bond, that would appear upon the information.

If there are no further questions on the mootness matter, if I may proceed to the -- great may years ago, this Court in the case of Forsyth versus Hammond, a case in which a writ of certiorari had been issued, the Court was requested to reexamine the question as a threshold matter and this Court said what has influenced us in our preparation, the Court said there are really two questions are involved; one of propriety and one of power, that with respect to the question of propriety the Court said that that should be considered as foreclosed because the Court has granted the writ.

But that with respect to the question of power, that question is always open and when raised there must be considered and disposed off by the Court.

So using that case as a guideline and other cases to it, we have suggested to the Court of that under no theory is that jurisdiction to review on certiorari this particular case for several reasons.

One, as has been mentioned by the petitioner and that is, if this case was not a case in the Court of Appeals for purposes of review on writ of certiorari and authority to that of course is the Ferguson case and two, we rely upon the House versus Mayo, but not for the reasons suggested by petitioner.

In the Ferguson case of course in which it was sought to get into the Court of Appeals to the Supreme Court by writ of error, the Court said that the case was not in the Court of Appeals and therefore cannot be reviewed.

There does not seem to be any serious question in the minds of petitioner that he is not properly in the Court pursuant to 28 U.S.C. 12541.

But we go a step farther and say that there is no right to review because a petition was not filed within the time prescribed by the Court's rules.

Now petitioner first said that if -- that his petition was timely because it was filed within 30 days after the Court of Appeals entered order vacating and reentering the order denying a petition for rehearing in banc.

Petitioner has apparently abandoned that point now because he has said nothing further about it.

But insists that he is -- here, because he is invoked the jurisdiction of the Court under the 28th U.S.C. 1651, which confers upon the Court's authority to issue all writs in aid of its jurisdiction.

We submit that here being -- was no jurisdiction to be aided, and that even if the petitioner it had preceded in the manner, proceeded in the manner prescribed by the rules of the Court that he would not be entitled to review under the extraordinary writ section.

And what the --

Justice Byron R. White: You consider the petitioner's position to be either here under 1651 or not all?

Mr. Hubert B. Pair: I think he is retreated to that point, that was I understand them, but I will address myself to both upon he's not properly here on the ended theory.

Not here on the 12 -- under 28 U.S.C. 125401 because his petition -- I mean because he is not a case in the Court of Appeals.

He's not here under the 28 U.S.C. 1651, because that writ may not be used as a substitute for established appeal procedures and that in any event, the petition is not filed within the time prescribed by this rule, by the rules of this Court, the rules being a mandatory and jurisdictional.

Now You Honors, we'll recall that petitioner first went to the U.S. Court of Appeals saying in effect that I have not filed a petition within the time you required by the rules of the Supreme Court and ask the Court of Appeals if it would be good enough to vacate and reenter its order, so that the procedural defects could be cured and so that he could come up to the Supreme Court.

Now the rules of the Supreme Court require and the language so clear is to not require a construction of that the petition must be filed within 30 days and the rules authorize a justice of the court to extend the period to an additional 30-day period, but then only if the application for an extension is made before the expiration of the 30-day period.

It was more than 75 days after the Court of Appeals denied rehiring in banc, before he went back before the Court of Appeals.

Alright, so in that court to do indirectly what it had no authority to do directly, saying in effect and that is to enlarge the time for filing a petition for a writ of certiorari.

We submit that that could not be done.

That this Court even if it wanted to confer or to relinquish its jurisdiction, insofar I mean to -- yes, to relinquish its jurisdiction or surrender its jurisdiction so that the rules of the Court of Appeals would control that it could not do so.

The rules of the Supreme Court as we understand it have the force and effect to the law.

They were made pursuant to the rules of criminal procedure which in turn have the force in effect of law, and those rules of criminal procedures specifically provide that the time within which a petition -- a writ of certiorari in a criminal case maybe filed in the Supreme Court shall be within such time as prescribed by the rules of that court.

Now unquestionably the Court has authority to amend its rules, but it has not done so and in the comparatively recent case of Robinson -- United States versus Robinson, the Court said that however desirable great of flexibility, however desirably would be to have great of flexibility in this matter of appeals that -- that's for the rule making process and not the judicial decision.

So we say to the Court that -- laid down this -- under 1251 -- 28, 1651, is that jurisdiction to review this case.

Now petitioner says one other thing with respect to 28, 1651, and he relies very strongly upon the case of House versus Mayo and I like to say just the word about that case.

In that case, a motion was made to the Court pursuant to its rules for leave to file a petition of common law writ of certiorari.

There the petitioner found himself in this position.

The case originated in the state court and it came to the District Court on the writ of habeas corpus.

The District Court denied the petition and then dismissed -- refused the issue of the writ of habeas corpus.

As provided by law, the petitioner then sought from the District Court a certificate of probable cause, so that he could appeal to the Circuit Court of Appeals.

The District Court refused to issue the certificate.

The statute provides also that the Court of Appeals or a justice thereof, may issue the certificate and permit the appeal.

And so, the petition that came to the Circuit Court of Appeals saying in effect, “I tried to get a certificate of probable cause in the District Court, they wouldn't give it to me.

I have a meritorious case, please allow me to appeal.”

The Circuit Court would not even consider the application for a certificate, saying to the petitioner that, “You have no right here, unless you are possessed of a certificate of probable cause issued by the District Court.”

Now obviously in that type of situation, the Circuit Court of Appeals refused to exercise jurisdiction which the law had conferred upon it.

And traditionally, the writ of cer -- the traditionally a writ of -- the common law writ of certiorari is issued to compel a court, to exercise its jurisdictions, just as it has issued to restrain a court from exceeding its jurisdiction.

So House versus Mayo is clearly distinguishable from this situation but it's distinguishable for another reason.

The case came into the Supreme Court in House versus Mayo through courts of the federal system.

Certainly, a case originated in the District Court and I say originating there, although the petitioner must first filed in the state court, but for the purpose of being -- of a procedure and the purpose of a case in a Supreme Court, it came by stages from the District Court to the Circuit Court of Appeals and then to the Supreme Court.

This case was never in the Court of Appeals and was now in a district court.

The case was in the District of Colombia Court of Appeals.

Now it may well be that in time Congress may see fit to give the District of Columbia Court of Appeals a status of the highest court of state, but it has not done so.

So the District of Columbia Court of Appeals, although occupying a position comparable to the -- to that of the highest court of the state, is not the highest court of state.

It is not in a court in the federal system.

It is a court in the municipal system.

But that is not to say that the Congress has not provided for a review of its decisions.

It is only to say that the Congress had not seem fit to provide for appeals of right from decisions of the District of Columbia Court of Appeals to the Circuit Court of Appeals.

It is provided for discretionary review and that is what happened in this case.

And it is very, very interesting and this is what happened in this vagrancy case, which has been transported to this Court in a very defective vehicle because certainly this case is not the proper vehicle to bring a constitutional question to this Court.

The case as been all originated in the Court and the District of Columbia Court of General Sessions.

There was an appeal of right to the District of Columbia Court of Appeals which affirmed and it affirmed the decision on the authority of prior decisions of that court, which had construed the very section of the Vagrancy Act which is here involved.

Mainly, this case as I mention on the brief Rogers case and the Davenport case and both cases of the Act withstood assaults against it on constitutional grounds.

So in this case, the District of Columbia Court of Appeals on the authority of prior decisions affirmed the judgment of conviction and this is most interesting.

The Court of Appeals, Circuit Court of Appeals the highest court in this jurisdiction, the court which this Court looks to, have found decisions on questions of local law review of the record, such record as the petition sought it to bring that.

And first stated, the issue of that court and then the entire court after the most careful and deliberate consideration, did not find sufficient merit on the constitutional claims to warrant it and allowing an appeal.

So what do we have standing?

We have standing a judgment of the District of Columbia Court of Appeals which remains undisturbed.

It is suggested by petitioner here that this Court might bypass the Circuit Court of Appeals and notwithstanding the statutory scheme reach down and bring up to it, the record in the District of Columbia Court of Appeals.

But petitioner did not even ask to their writ even assuming and we don't think the writ would issue to that court, but there has been no effort to have the reach -- writ extend to the District of Columbia Court of Appeals.

So we say that if there is anything to be reviewed by this Court, it is the order of the Court of Appeals denying discretionary review.

The point has not been briefed, all that has been said or said, is that the Court abused its discretion because it did not allow an appeal.

But petitioner overlooks that fact, that in denying an appeal the Court of Appeals exercised the very jurisdiction that Congress had imposed upon it.

It did the very thing that Congress authorized it to do, because Congress said that in addition to other jurisdiction which this Court has, it shall have jurisdiction to review cases, judgments of the District of Columbia Court of Appeals and then the Congress says, provided machine report by a petition for allowance of an appeal.

And if the petition is granted Congress said, “Then the Court shall review the record and shall affirm, reverse or make whatever disposition which is just and proper.”

Justice John M. Harlan: The Court of General Sessions I understood you to say is a court of record?

Mr. Hubert B. Pair: It is a court of record.

Justice John M. Harlan: Were there minutes of this trial available?

Could they have been furnished?

Mr. Hubert B. Pair: They could have been furnished and this is a practice.

In cases -- stenographic report is not made of all cases.

Absent a stenographic report, the statute provides where statement of proceedings and evidence, the appellant, that is a person complaining of a judgment of the District of Columbia Court of General Sessions has an appeal of right.

He files a statement of errors, a designation of record and a proposed statement of proceedings and evidence that is served upon the opposite party.

If there are objections to the statement of proceedings and evidence, the objection is stated.

Then the act provides --

Justice John M. Harlan: Was that statement filed here?

Mr. Hubert B. Pair: There was a statement, an agreed statement.

Justice John M. Harlan: Agreed statement?

Mr. Hubert B. Pair: Agreed statement.

The statute provides to you for statement of proceedings and evidence approved by the trial judge or an agreed statement.

A reasons of his own petitioner elected to proceed by an agreed statement and that is all that we have here, so that there was ample room and ample authority to provide the most minute records of all that transpired in the Court of General Sessions.

Chief Justice Earl Warren: I wonder -- I notice you only have a very two minutes more, I wonder if you referring to get to the constitutional question for which we took this case.

Mr. Hubert B. Pair: Yes.

I want -- with respect to the constitutional question, we think that we can sum it up this way.

The highest court in this jurisdiction, that is passing upon the question, has sustained the constitutionality of the Act.

There is no in the record and there has been no judgment by the highest court in this jurisdiction, the Court of Appeals.

There is no judgment respect from the constitutionality of the District of Columbia Vagrancy Act.

So all that we have here is the judgment of the District of Columbia Court of Appeals sustaining the constitutionality of the Act on the authority of prior decisions of that court.

The district relies upon the decisions of the District of Columbia Court of Appeals and we have made no extended -- the argument on the point, for the reason which had been indicated and for the further reasons that we know of nothing further that we can add except to say that the Act is sufficiently -- a definite and precise to withstand any constitutional assault, to persons of reasonable intelligence, know when that conduct is immoral, there are words that can be understood by all who can read, a person knows when he is guilty of -- when he is living a profligate life.

It is an even the --

Justice Hugo L. Black: Wouldn't there be a great difference of views among the people as to whether that -- found that is immoral or was it is?

Mr. Hubert B. Pair: Well (Voice Overlap) it would -- difference or whether the conduct is obscene and this Court has passed upon that question that it's susceptible to understanding by reasonable --

Justice Hugo L. Black: How would you define immoral?

Mr. Hubert B. Pair: I beg your --

Justice Hugo L. Black: How would you define immoral?

Mr. Hubert B. Pair: I would define immoral as a -- the District Court of Appeals did in the Davenport case which counsel has spelled out in the record.

I couldn't add to it, Justice Black.

Justice Potter Stewart: I thought that this man was arrested for pleading a -- perhaps to get an immoral life and -- and also one other things that it is and it's or, for lodging in the public comfort station and I supposed that's a specific and I suppose it's nothing unconstitutional if a government wants to say it's -- an advance to setup housekeeping in a public comfort station.

Mr. Hubert B. Pair: Well that's very true, that was a specification of the charge.

And I would have to go out of the record to actually describe to the Court exactly what was happened here.

That I think it's sufficient giving the judgment of the Court of the General Session and Court of Appeals -- I mean in the D.C. Court of Appeals, the presumption of validity that it was based upon evidence sufficient to sustain it and that the prosecution was under an Act sufficiently definite and precise, so that to serve as a guide to future conduct.

We would say Mr. Chief Justice and I beg the Court, that on this record the one that there is no jur -- the case is moot and if it is not moot, there is no jurisdiction to review it on writ of certiorari, I don't think it was improvidently granted and that in any of that, if the Court finds that notwithstanding these what we consider procedural, serious procedural defects here, that a judgment here to be -- if then it should be affirmed.

Thank you.

Rebuttal of Charles W. Wolfram

Mr. Charles W. Wolfram: May it please the Court.

If I had any idea before last night, that mootness would be a major issue in this case and I think it is not, I would have come prepared to discuss it.

I would like to suggest at this time that petitioner be given an opportunity to file a memorandum of some sort in opposition showing our views on mootness point, if that's thought necessary.

Thank you.

Chief Justice Earl Warren: Within ten days, yes sir.

Mr. Charles W. Wolfram: On the mootness point itself, I should point out that whether or not a man can still be imprisoned, it's not the only question when considering mootness.

Under DC Code Section 22104, is just been pointed out to me, one and one half times the penalty for a criminal offense can be imposed if a man has been convicted of that offense at any time in the past.

So in another words, as long as Mr. Hicks' vagrancy conviction whether moot at the moment it was imposed or not, as long as it stands he can the next time, if there is a next time that he is brought in on a charge of vagrancy, be imprisoned for up to 90 days plus half of 90 and fined $300 plus half of $300.

Justice William J. Brennan: [Inaudible]

Mr. Charles W. Wolfram: I don't think Mr. Hicks would like to come to the Supreme Court every time he's charged with vagrancy.

Chief Justice Earl Warren: We recess now.

Continue your argument.

Mr. Charles W. Wolfram: Thank you Mr. Chief Justice Warren.

Shortly, I would like to clear up a few misapprehensions, few of the many that had been raised.

The Court of General Sessions of the District of Columbia is not a court of record as I understand what that term means.

Court reporters are not ordinarily available if a defendant wishes, a transcript made, he must make his own arrangements to have a court reporter present.

Chief Justice Earl Warren: Pay for it?

Mr. Charles W. Wolfram: He must pay for it.

There is no provision for an in forma pauperis proceeding although the Court will in occasion appoint counsel.

There is no --

Justice John M. Harlan: [Inaudible]

Mr. Charles W. Wolfram: Yes it was.

Yes, appointed counsel was present at this trial, the record reflects so.

But to call -- the Court of General Sessions, a court of record because a person can have a paid reporters there and to prepare a transcript just to call any court, the court of record.

It's not customarily done.

There aren't many people charged with vagrancy who can pay it for a court reporter.

I don't know of a case where it's ever been done.

As far as the agreed statement an appeal goes, this is just the result of the memory of counsel on the appeal.

In my case and in the case of the District of Columbia, the particular counsel involved had not been at the trial.

I can't speak for the District, I am not sure of that, I know I wasn't.

I know that any statement I would have to agree to and have to involve, as I said hearsay statements from others.

They conflicted, of course they would, person's memory on what goes on in a day in the Court of General Session will necessarily conflict with another person.

There are hundreds of cases tried, not one just as insignificant as the other.

Justice Potter Stewart: So as far as you know Mr. Wolfram, it's surprise you could tell us except to define hearsay what the evidence was that -- in this case was that this petitioner was lodging in a comfort station, that's one of the --

Mr. Charles W. Wolfram: For all I know what is --

Justice Potter Stewart: And that do you think that's vague or unconstitutional of Act in part of government (Voice Overlap) --

Mr. Charles W. Wolfram: I am not aware but -- a statute of the District of Columbia which makes lodging in a public comfort station a crime, I know that specification in the information, what we are attacking those statute.

I don't think that this particular specification helps statute at all.

I don't think there is anything in the words immoral or profligate life which would suggest that lodging in a public comfort station is immoral or profligate or perhaps it would.

If it would, I think that's just proves, how vague it is.

Justice Potter Stewart: That's not a separate statute or ordinance as far as you know?

Mr. Charles W. Wolfram: My understanding of the facts as if he was, I don't know what else he was doing.

Justice Hugo L. Black: Have you [Inaudible]

Mr. Charles W. Wolfram: No it doesn't.

None of the evidence in --

Justice Hugo L. Black: [Inaudible]

Mr. Charles W. Wolfram: I don't believe of the agreed statement, I believe on the information on the printed form on page 2 I think of record.

Justice William J. Brennan: [Inaudible]

Mr. Charles W. Wolfram: Pardon me?

Justice William J. Brennan: Who [Inaudible] allegation --

Mr. Charles W. Wolfram: Yes.

The very -- well, it might have been, yes.

Chief Justice Earl Warren: On your motion to set aside the finding of guilty, you recited the facts as you understood on page 6 of the record.

Were those facts contested on that motion?

Mr. Charles W. Wolfram: No.

There was no argument as I recall.

Again, there is no record as I recall on the argument none of the facts were gone over.

The judge to my mine was quite convinced that the conviction of that in offense had been committed.

I didn't press the point at length, the point in response from the District of Columbia, their argument I didn't contend the facts at all.

Justice Potter Stewart: Now the District of Columbia Court of Appeals statement is made that in this appeal no contention is made that the evidence was insufficient to bring appellant within the classification.

And the record contains no recital of the factual situation upon which the arrest of convictions were based.

Appellant asserts only the claim that this classification of vagrancy is unconstitutional, that's a fair statement of your position --

Mr. Charles W. Wolfram: That's correct.

Justice Potter Stewart: -- and here, is it not?

Mr. Charles W. Wolfram: That's right, yes.

Another misapprehension has to do with the previous attacks made on subsection 3 in cases decided by the District of Columbia Court of Appeals, that's the three-judge local Court of Appeals.

The respondent cites the Rogers and Davenport cases.

It is true if you read those cases, you will see references to constitutional arguments.

In the Rogers case, if my recollection serves me, the attack was not upon subsection 3 itself, I am sure that the attack was not to avoid for vagueness.

In Davenport, you may read the opinion and not know what the attack was.

I believe the opinion just states the various constitutional grounds have been urged for the reversal we find no merit in any of them.

I don't believe that this is an adjudication on the merits of the particular point before the Court on this appeal.

I am sorry because of the mootness point that the respondent did not have an opportunity to present further argument on the only reason why the case is before this Court.

The constitutionality of the words immoral or profligate life, I suspect that the argument wasn't favoring by respondent.

I don't think that the serious argument as to the constitutionality of the words can be made.

In closing, I can only adopt the statement of Mr. Pair.

The meaning of the words leading an immoral or profligate life, as that meaning was defined in Davenport can't be added to.

That's precisely my point, it covers the whole spectrum of the human behavior.

Under Davenport, a man must lead a good life, he must do what is right, he must avoid what is wrong.

If this is permissible statutory language for penal statutes, there is no void for vagueness doctrine.

There is such a doctrine of course, I think the words are unconstitutional under.

Yes sir.

Justice Potter Stewart: Did you make any argument in the Court of Appeals or do you make any here as to the -- that it is unconstitutional to make a status as such, a criminal offense?

Mr. Charles W. Wolfram: No we didn't, no.

I believe the argument and we'll be made.

Justice Potter Stewart: You has cruel and unusual punishment argument of the Court of Appeals, is that --

Mr. Charles W. Wolfram: We have another argument in the Court of Appeals having to do with invidious discrimination because of the latter to specifications of what vagrancy is under subsection 3.

In others words, not having employment and not having a local source of incom.

We have dropped that contention on this appeal not because I don't want the Court to consider it but because I think and I think it's painfully obvious that the words are just unconstitutionally vague and it's an easy case.